I am pleased to be able to report that, after umpteen tests, my health scare is now over. I am told that I have just one more exploratory medical procedure to go, but believe that the recommendation for that is merely precautionary. Meanwhile, during the three months that I have been recuperating, I have recovered much of my previous rude health.

During this period of recuperation, I have handed over the whole of my caseload to other counsel, and have now decided that, rather than resume my practice as a barrister, and after some 44 years since I first started practising as a specialist construction lawyer, this is the appropriate time for a change.

Henceforth, I will practice as a pendulum arbitrator and mediator.

Pendulum Arbitration

I am one of the few construction lawyers in Australia with experience of pendulum arbitration, and am, I believe, the only arbitrator specialising in this form of dispute resolution. It is a form of dispute resolution which I have long regarded as much underused in the construction sphere offering, as it does, massive advantages in terms of reduced cost, increased speed and the opportunity for disputants to get on with their business without distraction. A fuller explanation of how pendulum arbitration works is here. And some Q&A.

A feature of pendulum arbitration is that it works best if the disputants have a high level of confidence that the pendulum arbitrator has the necessary experience and expertise in construction law to be able quickly and reliably to make an assessment of the strengths of their cases. I believe that I have that necessary experience and expertise.

Mediation

Mediation is, of course much better known. I have been occasionally mediating construction disputes since the 1990s although not, hitherto, as a mainstay of my professional work[1]. So far, I have never failed to resolve a dispute in which I have been appointed as mediator. I do not expect this track record to survive indefinitely, but I hope it will give confidence that I am a safe pair of hands in this capacity.

It will not be necessary for me to maintain my practising certificate in these new roles, and I do not propose to do so once my current certification runs its course.  This means that I part company with Keating Chambers, of whom it has been my great pleasure to be an International Member for some years, not only because of my friends there, who I have known since my days as a young lawyer in London, but also because of its ever increasing status as the leading set of construction law chambers in the common law world.

Other methods of dispute resolution

I remain a registered adjudicator in the Northern Territory, and a member of the Dispute Review Board  Foundation, and am available for appointments in those capacities.

[1] When I was practising as a solicitor, it was not uncommon for disputes to arise between existing clients of my firm. In those circumstances, neither I nor any of my partners was able to act for either party. The service that we offered was that I would mediate. It was an offer that was usually if not always accepted. The process was that at the end of the mediation, if the parties had not already reached agreement, I would make a recommendation to both parties together as to the terms on which the dispute between them should be resolved. Such recommendation was, of course, entirely non-binding, but in every case, both parties were prepared to accept such recommendation, and the dispute was resolved accordingly. That 100% success rate reflected the confidence of the parties, not only that my recommendation was commercially fair and reasonable, but also that it represented a reasonably accurate assessment as to how things would turn out if the dispute ran the course of a formal dispute resolution process such as litigation or arbitration.